“. . . silly imprisonments and silly damages . . .”

Books like Crime and Punishment in Early Maryland can tend to have a gawking quality. “Would you look at that! They branded someone for stealing a pig! Hey, look, they talk different from us! Aren’t they funny?”

Now there are certain pleasures in gawking, and some things in history call for it. But I confess a natural suspicion of such books, and I feel authors miss a great opportunity when they employ this approach. Yes, look at the “accident” on the side of the road if you want to call it that, but also see why the accident happened. Such an attitude also smacks of superiority, and no one likes to hear a smug person talk for 350 pages or so.

This book usually avoids the smug attitude, but leaves other stones unturned. Not every book has to do everything, but it seems to me that anyone can compile a list of laws and punishments. We ask our authors to do more, to be artists, to spur on our imaginations, and so on, and this author Raphael Semmes fails to do. Still, the book raises some interesting questions and presents a vision of colonial America that may be hard to swallow for some.

The books starts out with a chapter on the “majesty of the law” to set the tone of the book. Those that criticized local judges or magistrates with “bad language” would routinely face fines or corporal punishment. Of course nothing like this would ever happen today, and I’m guessing Semmes starts this way to startle the reader and get us to gawk a little bit. As to why colonial Maryland did this, Semmes hints at the likely reasons (without exploring them) by titling his chapter, “The Majesty of the Law.” Maybe the colonists rendered these verdicts to protect the idea of community itself. Their legal representatives embodied themselves. So maybe the magistrates were not starchy shirts but protective of the people’s law. I stress “maybe” because I lack knowledge in this area, and Semmes could help me out by offering a thesis of his own. Maybe I would have disagreed with his thesis, but at least I would have something to chew on.

Again, the overall tone Semmes creates is one of undue harshness. If I’m right about this, I think he misses the bigger picture. At times he thinks verdicts were too harsh, but at other times he frowns on the court’s clemency, i.e., “If ever a man deserved the death penalty, surely it was Jacob Smith, but the court instead granted mercy, etc.” The most fascinating sidelight for me was Maryland’s practice of “claiming benefit of clergy.” Basically, back in the old country, clergy could be tried for crimes but claim his priestly status as a protection against the death penalty. Maryland allowed even layman to make this same petition, which struck me as odd especially for the most Catholic of the early colonies. Apparently as the printing press came into greater use in the days of Henry VII more people could read, and so more people knew about and claimed this “benefit.” Those that asked for this special exemption would receive a branding on their hand to indicate the mercy shown, and also a mark in a ledger, for one could claim the exemption once and once only. While I’m glad that Semmes mentions the many examples when this happened, he treats the background and rationale in one paragraph, which strikes me as an significantly missed opportunity to explore something totally foreign to modern readers.

Semmes also mentions many cases where an apology changes everything. One example had a man about to receive a heavy fine and imprisonment for cursing out a judge. After the verdict was rendered, he apologized, stating that, “I must have been drunk at the time!” The judge then reduced the penalty drastically with an “aw, shucks” shrug and sent him on his way.

I think Semmes seeks what most of us moderns would, a code where law, inflexible law, reigns supreme over the context and personality over those involved. We want our Justice blind. But when we see a law code that at times seems too harsh and at others to lenient, we know we are seeing law enacted where personal bond and communal accountability trump the exactness and blunt instrumentality of law.

The system Semmes describes has real disadvantages. It has more inherent possibility of favoritism, corruption, and so on. But this informal approach to law also has advantages, on which Semmes entertains no speculations, no lofty thoughts. Think, for example, about parents with their children, where their knowledge of their personalities, the context, and other factors can lead to more nuanced judgments. Could this work in the state?

For that I call to witness G.K. Chesterton.

The Club of Queer Trades is far from Chesterton’s greatest work, but perhaps his most entertaining. One of the main characters is Basil Grant, a retired judge who “went mad” on the bench. Chesterton writes,

He accused criminals from the bench, no so much of their obvious legal crimes, but of things that had never been heard of in a court of justice, [such as] mostrous egoism, lack of humour, morbidity deliberately encouraged. . . . He said to a man convicted of a crime of passion, ‘I sentence you to three years imprisonment, under the firm and God-given conviction that what you require is three months at the sea-side.’

Towards the end of the book Basil expounds his philosophy:

Years ago, gentlemen, I was a judge; I did my best in that capacity to do justice and to administer the law. But it gradually dawned on me that in my work, as it was, I was not touching even the fringe of justice. I was seated with the mighty, I was robed in scarlet and ermine; nevertheless, I held a small and futile post. I had to go by as mean a rule as the postman, and my red and gold worth no more than his. Daily there passed before me taut and passionate problems, the stringency of which I pretended to relieve by silly imprisonments and silly damages, while I knew all the time that they would have been better relieved by a kiss, or a thrashing, or a few words of explanation, or a duel, or a tour of the West Highlands.

To my great delight, there is such a thing as the Basil Grant Society. Score one for the internet.